Info/Law

Paul Ohm has a terrific new paper out on SSRN, Broken Promises of Privacy: Responding to the Surprising Failure of Anonymization (forthcoming in UCLA Law Review). It discusses how statistical techniques have made it increasingly easy to re-identify anonymized data sets, and to apply that information to other identification problems (for example, taking information from one’s movie ratings on Netflix and using it to figure out someone’s Facebook friends). This change in statistical power – enhanced by readily available computer computational power – undermines the exceptions embedded in many privacy regimes (think HIPAA) for anonymized data. Paul’s piece is an easy and powerful read. I’m going to assign it in my Information Privacy class next year, and it has changed how I think about regulating privacy. Highly recommended.

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Filed under: Filtering, First Amendment, Health Law, Intermediaries, Internet & Society, Law School, Privacy, Scholarship, Social Networking

An anonymous student at BLS has started a great blog, You Can Wordify Anything If You Just Verb It. It collects the more… interesting… things said by both profs and students. I’m already spending significant cycles trying to guess the provenance of some of these quotes. Given that certain of them mention Internet Law, I have some initial suspicions.

The runner-up for Internet meme of the week is the Muppets’ “I’m On a Boat.” (This clip is not even vaguely SFW.)

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Filed under: Anonymity, Blogging, Blogroll, Digital Media, Intermediaries, Internet & Society, Law School, Media, Music, Peer Production, Privacy, Video

Update (1/14/2010): Verisign’s iDefense Labs traced the cyber-attacks on Google to a “single foreign entity consisting either of agents of the Chinese state or proxies thereof”. In response to Google’s statement and claims of hacking, a Foreign Ministry spokeswoman said, “China’s internet is open… China administers the internet according to the law. We have an explicit stipulation of what information and content could be spread over the internet.” That’s three lies for the price of one.

Google has announced that it will stop censoring results on its google.cn search engine, and may withdraw from the country altogether. This is the biggest development in the Internet filtering space in years, and it shows that Google’s statement that one can make money without being evil is taken seriously in the company’s headquarters. I have a few initial reactions, and will post a more considered response shortly.
First, it’s fascinating that the deciding factor was not censorship, but hacking and surveillance – Google apparently decided that Chinese monitoring of communications, and hacking of human rights activists’ Gmail accounts, was intolerable (at least in combination with censorship). To the company’s credit, they appear to have internalized the lessons Yahoo! learned so painfully from the Shi Tao debacle. Surveillance is a much harder problem to detect than filtering (where groups such as ONI operate as watchdogs), and hacking is difficult to trace. The combination appears to have been too much.
Second, it will be fascinating to see how China’s government reacts. Suppression of political dissent is a key objective of the CCP. Google has crossed a line in how China operates – differences of opinion are handled privately, not publicly. I think this is likely to draw a relatively harsh response – first, because Google has tossed down the gauntlet, and second, because they’ve embarrassed the PRC’s government. China works very hard to control the on-line information environment and part of the system’s power is its lack of visibility.
Third, I’ll be interested to see how other Western Internet firms react. This could either be a business opportunity (consider how Yahoo! handed over its China operations to Alibaba, a firm with no compunction about complying with censorship or surveillance requests) or a chance to follow Google’s lead and stand up for the corporate values most companies espouse.
Finally, imagine that google.cn stays up. Does Google’s decision make a difference? After all, filtered sites are still unreachable. I think that it does. As Sherlock Holmes put it, it’s the dog that doesn’t bark – when you know something is missing, you have a window into the deliberate decision of a sovereign (whether Google or China) to prevent you from accessing it. That alone is powerful.
Stay tuned! Props to many of my Internet Law students for bringing this to my attention – I’m proud of you!

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Filed under: Corporate Law, Filtering, ISP, Intermediaries, Internet & Society, Privacy, Search Engines, Security, international

The Harvard Crimson’s Xi Yu has a good article today about the Tenenbaum case and its prospects on appeal. She kindly asked me for my thoughts on the case’s future. I want to expand a bit on how I see fair use. (Ah, yes, a “clarification” – I haven’t felt so much like a politician since I took those campaign contributions in return for my vote in a faculty meeting.) As copyright folks know, fair use is messy, case-specific, and fact-intensive; it’s a muddy standard and not a crystal rule. Thus, it’s generally something that ought to be handled by juries, upon which we depend for resolution of tough fact issues.

However, I don’t think that Tenenbaum was correct in arguing that his fair use claim should go before a jury. Judge Gertner rightly disposed of his fair use argument on summary judgment, for two reasons. First, Tenenbaum failed to support adequately his position under the four-factor test for fair use (see 17 U.S.C. 107). While those four factors aren’t exclusive, they are set forth as exemplars in the statute, and slighting them is a perilous strategy. It failed here and it deserved to.

Second, Tenenbaum’s ultimate argument was not about whether he fell within fair use. It was about re-writing fair use – asking the jury to nullify an otherwise airtight case of infringement because they disliked how Congress has drawn the fair use defense. (See Tenenbaum’s opposition to summary judgment at 2: “Joel counters this prosecution is not fair to him or to his generation. He asserts that the copyright statute did not envision free and open space of cyberspace. Any assumption that Congress deliberated and decided the fairness issue in this new cyber context is fallacious.” Props to Ray Beckerman.) Judge Gertner correctly shot this down. We look to the legislature to make this call – how to balance IP access rights with incentives – and not to randomly selected jurors. Plus, nullification is essentially civil disobedience in the court system. It should be saved (to the degree it’s used at all) for issues of the utmost importance. I love copyright, but I don’t pretend that getting free music rises to that level.

So, I think fair use should generally go to the jury, but I don’t think it should have in Tenenbaum’s case.
Please note I don’t in any way mean to criticize the article – I should have made this point more carefully, and Xi / CiCi was trying frantically to copy down my caffeinated dribble drivel to boot. But that’s the joy of blogging: I can expound at painful length on fair use, confident that only close friends and family will be bothered with it…

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Filed under: Berkman, Blogging, Copyright, Court Decisions, Digital Media, Education & Copyright, First Amendment, Intermediaries, Internet & Society, Law School, Media, Music, RIAA, civil procedure

My article Cybersieves is now available in the Duke Law Journal. The team at Duke did a superb job editing and improving the piece, and I’m grateful. The abstract is:

This Article offers a process-based method to assess Internet censorship that is compatible with different value sets about what content should be blocked. Whereas China’s Internet censorship receives considerable attention, censorship in the United States and other democratic countries is largely ignored. The Internet is
increasingly fragmented by nations’ different value judgments about what content is unacceptable. Countries differ not in their intent to censor material—from political dissent in Iran to copyrighted songs in America—but in the content they target, how precisely they block it, and how involved their citizens are in these choices. Previous scholars have analyzed Internet censorship from values-based perspectives, sporadically addressing key principles such as openness, transparency, narrowness, and accountability. This Article is the first to unite these principles into a coherent methodology. Drawing upon scholarship in deliberative democracy, health policy, labor standards, and cyberlaw, this Article applies this new framework to contentious debates about sales of censorship technology by Western companies, public law regulation of these transactions, and third-party analysis of Internet censorship.

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Filed under: Berkman, Copyright, Filtering, First Amendment, ISP, Intermediaries, Internet & Society, Law School, Scholarship, international